Dharmarth Aushdhalaya ... vs Mool Raj Aggarwal
2011 Latest Caselaw 2383 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                         RC.REV.201/2010


+                                   Date of Decision: 4th May, 2011

#     DHARMARTH AUSHDHALAYA
      PARBANDHAK COMMITTEE                     ...Petitioner
!               Through: Mr. D.K. Rustagi & Mr. B.S. Bagga,
                           Advocates

                                Versus

$     MOOL RAJ AGGARWAL                         ....Respondent
               Through: Mr. Satya Prakash Gupta, Advocate

      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN

1.    Whether Reporters of local papers may be allowed to see the
      judgment?(No)
2.    To be referred to the Reporter or not?(No)
3.    Whether the judgment should be reported in the digest?(No)

                         ORDER

P.K.BHASIN, J:

This is a revision petition filed by the petitioner under Section

25B (8) of the Delhi Rent Control Act, 1958 against the order dated 19-

02-10 passed by the Additional Rent Controller whereby an eviction

order was passed against it in respect of a portion of premises no.E-5/5,

Krishna Nagar, Delhi-110051 (hereinafter to be referred to as 'the

tenanted premises') after dismissing its application for grant of leave to

contest the eviction petition filed on the ground of bona fide

requirement by the respondent herein.

2. The petitioner-tenant has been running a charitable dispensary in

the tenanted premises for over forty years. Municipal Corporation of

Delhi has been giving some financial aid to the petitioner-tenant for the

running of the charitable dispensary. As per the case of the respondent,

the said property belonged to his father and after his death a partition

suit was filed in Court in which a decree of partition had been passed in

the year 2007 according to which he had become the exclusive owner

of the tenanted premises in the possession of the petitioner-tenant

herein on the ground floor as also of one room and a store room etc. on

the backside of the tenanted premises and the first floor portion.

3. After the decision of the partition suit amongst the legal heirs of

the deceased owner-landlord Sri Ram the respondent filed an eviction

petition in the year 2008 against the petitioner herein on the ground that

he required the tenanted premises bona fide for opening a stationery

shop for himself as well as well for his son who was employed on a

meagre salary of Rs.6000/- p.m. It was pleaded in the eviction petition

by the respondent that he was a school teacher and had retired on

31/10/06 and after his retirement was doing nothing since he did not

have any place to start his work. Now he needed a place to start his own

work along with his son, who was about 32 years of age and was

getting only Rs. 6000/- per month as salary. In the tenanted premises he

wanted to start a shop for sale of books and stationery as 4-5 schools

are situated in the vicinity and there was no other accommodation with

him from where he could run the shop and the room and one store in his

possession on the backside of the tenanted portion was not suitable for

running the shop since there is no direct approach to that portion.

4. The petitioner-tenant had sought leave to contest the eviction

petition but the grounds taken in the leave application were rejected by

the learned Rent Controller. Out of the grounds taken by the petitioner

in its application, one was that property no. E-5/5, Krishna Nagar, Delhi

was situated in a residential area and so the same could not be used for

opening a stationery shop by the respondent herein and, therefore, his

case that he required the tenanted premises for his bona fide use could

not be accepted. The learned Rent Controller rejected that contention

on the ground that the tenant (petitioner herein) itself was carrying out

commercial activity in the tenanted premises and the aspect whether

any commercial activities were permitted in the area in question was for

the concerned authorities to take care of.

5. Before this Court, the learned counsel for the petitioner pressed

into service only the afore-said ground that since the tenanted premises

cannot be used for running a shop the requirement of the respondent -

landlord cannot be said to be bona fide. Learned counsel also

submitted that as far as the user of the tenanted premises for running a

charitable dispensary by the petitioner is concerned the same cannot

come in its way of claiming before the Court that the tenanted premises

cannot be used for a commercial activity/shop since running a

charitable dispensary with the aid of grant being given by Municipal

Corporation of Delhi cannot be said to be a commercial activity. It was

also contended by the learned counsel that in case the respondent -

landlord is in a position to get a no objection from the Municipal

Corporation of Delhi for opening of a shop in the tenanted premises the

petitioner - tenant would vacate the same without any demur but if he

is unable to get that clearance the petitioner should not be dispossessed

summarily.

6. Learned counsel for the respondent - landlord supported the

decision of the learned Rent Controller that it would be for the

concerned Government authorities to see whether the petitioner can

open a shop in the tenanted premises or not and the petitioner herein

cannot oppose the eviction petition on this ground. It was also

contended by the learned counsel for the respondent that it is a well

known fact that in most areas of the city and particularly where people

belonging to middle class like the respondent are residing shops etc. are

being run in some portions of the houses for earning livelihood by the

owners and, therefore, the respondent cannot be denied the benefit of

utilizing his property to earn livelihood for himself and for his family

on the ground that the Government authorities may not permit any shop

to be opened in the tenanted premises.

7. After having given my thoughtful consideration to the rival

contentions I am of the view that the point raised by the petitioner -

tenant that the tenanted premises cannot be used as a shop at all being

situated in a residential area requires consideration and in case it

succeeds in establishing the same the respondent - landlord may not

finally succeed in getting the tenanted premises vacated for running a

shop therein. It is significant to note that it was not claimed before this

Court on behalf of the respondent - landlord during the course of

hearing of this petition that no permission from any Government

authority is required by him for running a shop in the tenanted premises

and, therefore, at this stage it cannot be said that he requires the

tenanted premises bona fide for opening a shop therein.

8. In the facts and circumstances of this case, this petition is

allowed and the petitioner - tenant is granted leave to contest the

eviction petition but only in respect of the plea that the tenanted

premises cannot be used for running a shop. Accordingly, the matter is

now being sent back to the Rent Controller for disposal of this eviction

petition after giving opportunity to the parties to adduce evidence in

support of their respective pleas. However, considering the fact that

only limited leave to contest is being granted to the petitioner - tenant

not much evidence will be required to be adduced by it, the Rent

Controller shall make all efforts to dispose of the petition as

expeditiously as possible and in any case not beyond a period of one

year.

9. The matter shall be taken up by the Rent Controller now on 30 th

May, 2011 at 2 p.m. on which date the parties shall appear there.

P.K. BHASIN,J

May 4, 2011 sh